DINENDRA MALLICK Vs. PRADYUMNA KUMAR MULLICK

JUDGEMENT

(1.) This is an appeal from a judgment and decree of Buckland, J., dated 18 May 1933. The suit was brought by Pradyumna Kumar Mullick to recover from the defendant Kumar Dinendra Mullick and from the defendant Kumar Gopendra Mullick to the extent to which assets of his deceased father Kumar Ganendro Mullick might come into his hands a sum of Rupees 2,67,471-13-3 upon a covenant contained in an instrument described as a deed of mortgage dated 27 June 1924, which was executed in favour of the plaintiff by the defendant Kumar Dinendra Mallick and by the said Kumar Ganendro Mullick. There was also a claim for further interest for accounts if necessary and for payment of such sum as might be found due. The main point for determination at the trial of the suit in the Court below was whether it was in law competent to the plaintiff to bring a suit on the basis of the covenants in the deed of 27th June 1924 having regard to certain events and legal proceedings which had occurred prior to the institution of this suit. This history of the relations between the parties and the facts and circumstances upon which the plaintiff relied are briefly but clearly and sufficiently set forth in the opening paragraphs of the judgment under appeal and it is not necessary that we should recapitulate them. At the trial three points were taken on behalf of the defendants which the learned Judge summarized thus: Three points have been taken on behalf of the defendants. Firstly, it is urged that the suit is barred by limitation, for the suit being now a suit for a simple money decree upon a bond, the suit would be barred unless instituted within six years from the date of the instrument unless grounds are established extending the period of limitation. It is further contended that the matter is res judicata by virtue of the application made in the mortgage suit for a personal decree, and lastly, that the suit is barred by Section 47, Civil P.C., which requires that all questions arising between the parties to the suit in which a decree was passed or their representatives and relating to execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2.) The learned Judge held that the plea of limitation must fail and that decision has not been challenged in this appeal. Nothing further therefore need be said upon that point. As regards the other two points the learned Judge said that the question of res judicata is not altogether easy to divorce from matters to be considered in relation to the point taken under Section 47, Civil P.C., and he pointed out that authorities had been cited before him in the latter connexion in order to establish the proposition that any subsequent agreement between the parties relating to the subject matter of the decree is incapable of enforcement by a separate suit but must be treated as an adjustment of the decree itself and so dealt with in accordance with the provisions of Section 47, Civil P.C. Upon a careful review of the case as presented before him the learned Judge came to the conclusion that under the covenants contained in the document of 27 June 1924 the plaintiff had acquired fresh rights in addition to those he had obtained under the assignment to him of the original decree and he took the view that the personal covenants contained in that document were distinct and separate and altogether independent of the personal covenant contained in the earlier mortgage upon which it was sought to obtain a personal decree in the former proceedings in the year 1931, and that therefore the plaintiff was entitled to succeed in the suit.

(3.) Mr. S.N. Banerjee on behalf of the defendants-appellants has argued before us that what really happened at the time of the assignment of the original decree by the Roy mortgagees to the present plaintiff was that the plaintiff amalgamated the sum originally due to the Roys from the Mullicks as mortgagors with the additional sum advanced by the plaintiff to the Mullicks and that the plaintiff in effect treated the whole sum as a consolidated liability due from the mortgagors to him and accordingly the sum paid to the plaintiff on 23 August 1925 was taken by him in reduction of the combined debts with the result that when the plaintiff on 4 December 1931 instituted the proceedings which eventuated in the order of dismissal made by my brother Lort-Williams on 7 January 1932, the plaintiff was in essence and for all practical purposes taking execution proceedings in respect of the entirety of the defendants then outstanding liabilities to the plaintiff and the plaintiff by making that application in the matter of the original mortgage and upon the basis of an account made out upon the footing of both the original and the additional obligations had once and for all and irrevocably exercised the option given to him under the relevant provisions in the deed of 27 June 1924.